People v. Green
| Citation | 195 Ill.Dec. 122,256 Ill.App.3d 496,628 N.E.2d 586 |
| Decision Date | 03 December 1993 |
| Docket Number | No. 1-90-3521,1-90-3521 |
| Parties | , 195 Ill.Dec. 122 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bobby GREEN, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Jack O'Malley, State's Atty., Chicago (Renee Goldfarb, William D. Carrol, Andrew R. Dalkin, of counsel), for plaintiff-appellee.
Following a trial by jury, defendant, Bobby Green (Green), was convicted of two counts of possession of a controlled substance with intent to deliver (Ill.Rev.Stat.1987, ch. 56 1/2, pars. 1401(b)(2), (c)), and sentenced to 10 years of imprisonment. On appeal, Green argues: (1) that his conviction for possession of a controlled substance with the intent to deliver must be reduced to simple possession because there was insufficient evidence of an intent to deliver; (2) that he was denied the right to a fair trial when the state refused to disclose, and the trial court failed to compel the name of an occurrence witness; (3) that the trial court erred when it failed to ensure We affirm.
[195 Ill.Dec. 124] that Green knowingly and intelligently waived an instruction on the lesser included offense of possession; and (4) that the trial court abused its discretion by sentencing Green to 10 years imprisonment.
On February 28, 1989, at approximately 10:30 p.m., Officer Thomas Kwasinski (Kwasinski) and his partner, Tameron Martin (Martin) went to 1527 North Wicker Park to arrest a subject wanted on a warrant. The officers ascended to the second floor of the apartment building, found the subject, and arrested him.
Kwasinski testified that after the arrest, he and his partner had been leading the arrestee down the hallway when Kwasinski heard "snorting sounds" coming from another apartment on the floor. Kwasinski looked into the open apartment and saw Green sitting at the foot of the bed holding a mirror from which he was snorting a tan powder into his nose through a straw. At that point, Kwasinski entered the room, announced his office and placed Green under arrest.
Following the arrest, Kwasinski searched Green and found a black key case in his front pants pocket. Kwasinski stated that he opened the case and found 18 clear packets of a white substance and 26 tinfoil packets of a tan powder. From his experience as a police officer, he suspected that the white substance was cocaine and the tinfoil packets contained heroine. Kwasinski placed the tan powder from the mirror that Green had been holding into two tin foil packets that he had made and put it with the other packets.
In addition to the suspect drugs, the officer confiscated $87 in cash, a mirror, a glass pipe, numerous screens, a lighter and a scale. Prior to trial, however, all the drug paraphernalia seized from Green's apartment was destroyed at Kwasinski's request. Kwasinski explained that having drug paraphernalia in one's possession is not, in and of itself, a criminal offense and, therefore, it was police policy to destroy such items.
Kwasinski testified that in addition to Green, there were two other males present in Green's apartment at the time of the arrest, but he did take the names of these men. He stated that no females entered the apartment during the time of the arrest.
Marsha Ross (Ross), a Chicago police criminalist in the controlled substances unit, testified that she performed several tests on the drugs recovered from Green. Ross randomly selected and tested four of the tin foil packets containing tan powder; she concluded that the tan powder was heroin. The total weight of the heroin tested was 0.4 grams. Ross also randomly selected and tested eight of the plastic packets containing the white substance; she concluded that the white substance was cocaine. The total weight of the cocaine tested was 1.16 grams.
Audrey Thomas (Audrey) and her daughter, Jeanette Thomas (Jeanette), testified for the defense. Audrey stated that she and Green had been living together for thirteen years, and in February of 1989, they had resided in the apartment building located at 1527 North Wicker Park. Both women testified that on February 28th, they were having a small birthday party for Audrey's brother, David McCray, at the couple's apartment. Tim Washington, Jeanette's boyfriend, had also been present.
The two women testified that sometime during the evening, they left the apartment to go to the store for food and cigarettes. Audrey testified that as they were leaving, she saw the police in another apartment down the hall. The two women returned to the apartment a few minutes later to find the police, and the tenant down the hall, a man known as "Mousey," inside the apartment.
Audrey testified that when she re-entered her apartment, it was in shambles. She related that $250 was missing from a dresser drawer. She further testified that neither the black key case, nor its contents belonged to Green.
In rebuttal, the State called Chicago police officer Martin. Martin testified that on February 28, 1989, he and his partner, Kwasinski, went to 1527 North Wicker Park at about 10:30 p.m. The officers had arrested a suspect and were leaving the building when Kwasinski directed Martin's attention to apartment 215. The officers entered the At the close of all the evidence, the jury found Green guilty of both counts of possession of a controlled substance with intent to deliver.
[195 Ill.Dec. 125] apartment and observed tan powder and drug paraphernalia. Specifically, Martin stated that he saw pipes, a mirror, scales and razor blades. At that point, Kwasinski searched Green, while Martin guarded the man that the officers had originally arrested. Martin testified that he saw his partner take a black key case from Green's [256 Ill.App.3d 500] pants pocket. He testified that he never saw any women in Green's apartment on the evening of the arrest.
At the sentencing hearing, the State argued that Green should be sentenced to 12 years imprisonment. The State pointed to Green's prior criminal record as justification for its recommendation. Specifically, the prosecutor noted Green's convictions for robbery in 1970 and armed robbery in 1979.
In mitigation, defense counsel argued that Green had been working for Bradford Systems Corporation on and off for the past ten years. Further, the president of the company had informed the court that he would do his best to keep Green employed when he was released. In addition, defense counsel argued that Green had been convicted of a non-violent crime which involved a minuscule amount of drugs.
The trial judge sentenced Green to 10 years imprisonment. In sentencing Green, the judge stated that she considered the nature of the offense, his past criminal record and his T.A.S.C. evaluation.
Initially, Green contends that his conviction for possession of a controlled substance with intent to deliver should be reduced to possession because there was insufficient evidence of an intent to deliver.
In assessing the sufficiency of the evidence supporting a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original.) (Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; see also People v. Collins (1985), 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267.) A reviewing court will not set aside a conviction unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. Collins, 106 Ill.2d at 261, 87 Ill.Dec. 910, 478 N.E.2d 267.
The elements of the offense of possession of a controlled substance with intent to deliver are (1) that the defendant had knowledge of the presence of the controlled substance; (2) that the controlled substance was within the immediate control or possession of the defendant; and (3) that the defendant had the intent to deliver the controlled substance. (People v. Bradford (1993), 239 Ill.App.3d 796, 799, 180 Ill.Dec. 556, 607 N.E.2d 625; People v. Newman (1991), 211 Ill.App.3d 1087, 1093, 155 Ill.Dec. 478, 569 N.E.2d 1089.) The only element which Green challenges as not having been proved beyond a reasonable doubt is the intent to deliver. Specifically, Green argues that the small amount of cocaine and heroin recovered (1.16 grams and 0.4 grams respectively) was indicative of personal use rather than an intent to distribute. Furthermore, Green argues that no other evidence was presented from which a jury could have reasonably inferred an intent to deliver.
Intent to deliver is necessarily proved by circumstantial evidence. (People v. Pavone (1993), 241 Ill.App.3d 1001, 1005, 182 Ill.Dec. 372, 609 N.E.2d 906; People v. Cruz (1984), 129 Ill.App.3d 278, 84 Ill.Dec. 425, 472 N.E.2d 175.) A reasonable inference of intent to deliver arises from the defendant's possession of a quantity of a controlled substance in excess of an amount designed for personal use. (Pavone, 241 Ill.App.3d at 1005, 182 Ill.Dec. 372, 609 N.E.2d 906; People v. Berry (1984), 198 Ill.App.3d 24, 28, 144 Ill.Dec. 315, 555 N.E.2d 434.) However, the amount of contraband is not the sole evidentiary basis for inferring intent to deliver. (Bradford, 239 Ill.App.3d at 799, 180 Ill.Dec. 556, 607 N.E.2d 625.) Factors which also support an inference that a controlled substance was possessed with intent to deliver include the possession of a combination of drugs, the manner in which the contraband was kept or packaged, and the presence of drug trafficking paraphernalia. See Pavone, 241 Ill.App.3d at 1005, 182 Ill.Dec. 372, 609 N.E.2d 906; Bradford, ...
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